JUDGMENT : ANJANA PRAKASH, J. The sole Appellant has been convicted under Sections 148 and 302/149 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life under Sections 302/149 of the Indian Penal Code and fine of Rs.10,000/-, in default of payment of fine to undergo further simple imprisonment for a year vide Judgment of conviction dated 21.02.2011 and Order of sentence dated 22.02.2011 passed by the Sessions Judge, Khagaria, in Sessions Trial No.135 of 2008. However, no separate sentence was awarded under Section 148 of the Indian Penal Code and Section 27 of the Arms Act. 2. The case of Ram Swarup Mandal, the Informant (who later died) is that on 11.09.2005 at about 01.00 P.M., he alongwith his deceased brother Prakash was going towards their fields on a boat where he saw some persons gathered with arms coming towards his cousin brother Sunil and Ravindra (P.W.8). Seeing this, both the brothers became suspicious and proceeded towards the fields of Sunil. When they reached, they saw eight persons including the Appellant whom he names and two unknown persons, whose names he did not remember and three others of village Dhobiyahi Mushahri who he could identify by face but not by name. All of them were with arms and coming towards the north. On seeing both the brothers, they stopped and, thereafter, Basuki Mandal (absconder) and Bijay Mandal (Appellant) came towards them. Both of them abused Sunil saying as to why he had uprooted the flag at which he replied he would return the same but they kept on demanding an explanation as to how he had removed the flag. They, thereafter, started abusing him to which both of them protested. At this, Basuki Mandal fired at Sunil whereas Appellant fired at Prakash on account of which he fell down in the boat itself. Ravindra (P.W.8) and he himself ran and reached the village and informed everyone. They then recovered the dead body of Prakash from the boat and that of Sunil from the house of co-villager Fetri Mandal. So they brought both of them back and informed the police. The reason for the occurrence was land dispute. 3. During trial, the prosecution examined 11 witnesses. 4. They then recovered the dead body of Prakash from the boat and that of Sunil from the house of co-villager Fetri Mandal. So they brought both of them back and informed the police. The reason for the occurrence was land dispute. 3. During trial, the prosecution examined 11 witnesses. 4. P.W.1 Sikandar Mandal stated that about three years back at about 01.30 P.M. while he was grazing his cattle, he saw the Appellant Bijay Mandal and one Basuki Mandal firing at the two deceased Sunil Mandal and Prakash Mandal. There were 5-7 other persons out of which he identified only Sadan Chowkidar. He stated that since he was at a distance, he could not identify everyone. In cross examination, he stated that he was examined 15 days after the occurrence and clarified that he was about 15-20 ‘Laggas’(about 60-70 feet) away from the place of occurrence. According to this witness, Prakash Mandal had been shot in the fields, which is evidently contradictory to the statement of the Informant, who stated that Prakash Mandal fell down in the boat itself. 5. P.W.2 Ashok Mandal, the brother of the deceased Prakash Mandal and uncle of the deceased Sunil Mandal, stated that while he was in his fields, he saw Jai Prakash Mandal, Ram Swarup Mandal coming on a boat towards Sunil Mandal. From the other side, he saw Appellant Bijay Mandal and Basuki Mandal coming on another boat towards the east. There were 10-12 other persons sitting on the boat. Both the boats reached simultaneously near Sunil. Accused Basuki and Appellant Bijay Mandal got down from the boat and then he heard the sounds of firing as also saw Sunil and Ravindra (P.W.8) running towards the house of Fetri Mandal. At that time, he heard the sounds of 3-4 firings. The Informant came running towards him and informed him that his brother and nephew had been killed by the Appellant and Basuki. He then went to the place of occurrence and saw both the dead bodies. In cross examination, he stated that even before the firings, he had seen both the boats and he identified only three persons, namely, Basuki, Bijay (Appellant) and Sadan Saha. He further stated that his fields was after three fields from the boat and he had seen Sunil and Ravindra (P.W.8) running in the fields. He stated that the dead bodies were at two different places. He further stated that his fields was after three fields from the boat and he had seen Sunil and Ravindra (P.W.8) running in the fields. He stated that the dead bodies were at two different places. Whereas the dead body of Sunil was back of the house of Fetri Mandal, the dead body of Prakash was in the field. From his description about the occurrence, once again it appears that the occurrence had taken place in the fields and not in the boat. 6. P.W.3 Anirudha Sah did not support the case of the prosecution and was declared hostile. 7. P.W.4 Ajay Sharma is a formal witness, who identified his signature on the Inquest Report (Ext.1). In cross examination, he stated that the two deceased were of criminal antecedents. 8. P.W.5 Chhatri Sao has been tendered. 9. P.W.6 is Dr. Kamal Kishore Rai, who performed the Post-Mortem Examination on the two dead bodies. He found the following injuries on the person of Prakash Mandal. (A). External Examination: Mark of Identification-Cut mark at right leg. Blood was coming out from left ear with blood clots on pinna. (I). Lacerated wound 1/2” X 1/2” cavity deep with blood and clots on left side of nose 1” apart. Margin irregular and inverted and no blackening (wound of entry). (II). Lacerated wound 1” X 1” into cavity deep on occipital region of head with blood and clots. Margin was irregular and everted (wound of exit). Injury No.(I) was connected to Injury No.(II). (III). Lacerated wound 3/4” X 1/2” into cavity deep with blood and clots on middle of chest 1” below intermemory line. Margin was irregular and inverted. No blackening (wound of entry). (IV). Lacerated wound 1½” X 1½” into cavity deep on right side of back medial to spine of scapula with blood and clots. Margin was irregular and everted (wound of exit). Injury No.(III) was connection to injury No.(IV). (B). Internal Examination: On dissection-superficial and deep tissue in connection with above mentioned injury contained blood and clots, left maxilla was fractured in multiple pieces. Base of skull was fractured. Occipital bone was fractured and hole was present. Brain matter was lacerated, Cranial cavity contains blood and clots. Sternal bone was fractured. Right lung was lacerated and right side of the chest cavitry contains blood and clots. Right fourth rib on the back side was fractured. Right chamber of the heat was lacerated. Base of skull was fractured. Occipital bone was fractured and hole was present. Brain matter was lacerated, Cranial cavity contains blood and clots. Sternal bone was fractured. Right lung was lacerated and right side of the chest cavitry contains blood and clots. Right fourth rib on the back side was fractured. Right chamber of the heat was lacerated. Left chamber of the heart was empty. All the visceras were pale. Stomach contained approximate 2 to 3 ounce of digested food materials. All the above mentioned injuries were ante mortem in nature. Time elapsed since death within 24 hours. Cause of death hemorrhage and shock due to above mentioned ante-mortem injuries caused by firearms. He found the following injuries on the person of Sunil Mandal. (A). External Injuries: Mark of Identification-Cut mark on left hand. Blood and clots was present on both nostril and ears. (I). Lacerated wound 1/2” X 1/2” into cavity deep with blood and clots on left cheek. Margin was inverted and irregular. No blackening (wound of entry). (II). Lacerated wound 1½” X 1½” into cavity deep with blood and clots on occipital region of head. Margin everted (wound of exit). Wound No.(I) was connected with Wound No.(II). (III). Lacerated wound 3/4” X 1/2” into cavity deep oval in shape on left side of chest. 1” medial to nipple (lt.) with blood clots. Margin was inverted and no blackening (wound of entry). (IV). Lacerated wound 1½” X 1” into cavity deep on right side of abdomen in mid axilliary line with blood and clots. Margin was everted (wound of exit). Injury No.(III) was connecting to Injury No.(IV). (B). Internal Injuries: On dissection-superficial and deep tissue in connection with the above mentioned injury contained blood and clots. Left axilla, base of the skull and occipital bone was fractured. Brain matter was lacerated. Cranial cavity contains blood and clots. Right ninth rib was fractured. Right lower lobe of the lung was lacerated. Chest cavity contains blood and clots. Both chambers of the heart was empty. Left lobe of liver was lacerated. Loops of colan was lacerated. Abdominal cavity contains blood. Stomach contains approx 2 to 3 ounce of digested food material. Urinary bladder was empty. All the visceras were pale. All the above referred injuries are ante mortem in nature. Time elapsed since death within 24 hours. Both chambers of the heart was empty. Left lobe of liver was lacerated. Loops of colan was lacerated. Abdominal cavity contains blood. Stomach contains approx 2 to 3 ounce of digested food material. Urinary bladder was empty. All the visceras were pale. All the above referred injuries are ante mortem in nature. Time elapsed since death within 24 hours. Cause of death haemorrhage and shock due to above mentioned ante mortem injury caused by firearms. 10. P.W.7 Kamleshwari Mandal has tried to give an eye witness account in his examination in chief but states in cross examination that he was not an eye witness to it. He stated that on the date of occurrence while he was at the door of Srikant Mandal, he heard sounds of 4-5 firings and then Ravindra (P.W.8) came and informed him that his brother Sunil and uncle Prakash had been shot dead. He told him to go to the Police Station. He identified the Appellant Bijay Mandal who had got down from the boat and shot dead both the deceased and run away. In cross examination, he stated that he was not an eye witness to the occurrence and he was narrating first time in court whatever Ravindra PW 8 had told him. 11. P.W.8 Ravindra Kumar, mentioned in the Fardbeyan as one of the eye witnesses, stated that at about 03.00 P.M. while he was in the field of Rama Singh alongwith his deceased brother Sunil and was returning after having left fodder there, the Appellant Bijay Mandal and accused Basuki Mandal started firing on account of which his brother Sunil and uncle Prakash were killed. He stated that there was no reason for having committed their murder. In cross examination, he once again asserted that the two deceased did not have any litigation with anyone whatsoever. He stated that the two accused had fired from the orchard while he was with his brother and it was only, thereafter, that he ran away. He denied the suggestion that he used to take forcible possession of the land and that the Appellant and Basuki had no concern with any of the fields in question. 12. P.W.9 Prakash Paswan is a formal witnesss, who has proved the Inquest Report as Ext.3, the hand writing of the Police Officer on the Fardbeyan as Ext.4 and on the formal First Information Report as Ext.5. 13. 12. P.W.9 Prakash Paswan is a formal witnesss, who has proved the Inquest Report as Ext.3, the hand writing of the Police Officer on the Fardbeyan as Ext.4 and on the formal First Information Report as Ext.5. 13. P.W.10 Binod Kumar Singh was posted as Officer Incharge at Beldaur Police Station on the date of occurrence and at about 01.55 P.M., he received information on the telephone at which he proceeded towards village-‘Bari Jharna’. He then recorded the Fardbeyan of Ram Swarup Mandal in presence of Nand Kishore Kumar (not examined) and Vijay Kumar Sharma (not examined). He identified his signature on the same which is Ext.6 and assumed the investigation. He prepared the Inquest Reports of the two deceased, which are Ext.6 and 6/1. He examined the place of occurrence being on the west of Bahiyar where the water was about three feet deep. On the north was the field of Rama Singh, which was being cultivated by the deceased Sunil Mandal. He, thereafter, examined the rest of the witnesses. He identifies the signature of Naresh Singh Dafadar on the First Information Report as Ext.9 and on the Fardbeyan as Ext.8. He could not locate the accused persons. He stated that during investigation, he did not examine Rama Singh nor he did note the description of the lands in question. 14. P.W.11 Ranjeet Kumar is a formal Police Officer, who conducted the part of the investigation, which is not relevant. 15. The defence examined one witness Fetri Mandal in front of whose house, the deceased Sunil is said to have died. He stated that, in fact, the prosecution had land dispute with the Appellant Bijay Mandal on account of which he has been falsely implicated. 16. On going through the evidence of the witnesses, we find they are very cryptic and do not inspire confidence inasmuch they lack material particulars. In the First Information Report as many as eight persons have been named as accused alongwith several unknown persons. The sole eye witness Ravindra Kumar (P.W.8) mentions the complicity of only two persons and from his evidence, it appears that there was random firing by the two accused including the Appellant in course of which the deceased died in the field. This is completely contradictory to the statement given by the Informant in the Fardbeyan that the deceased Prakash had fallen dead in the boat. This is completely contradictory to the statement given by the Informant in the Fardbeyan that the deceased Prakash had fallen dead in the boat. Moreover, there is no independent witness in support of the prosecution case and we find that whereas P.W.1 Sikandar Mandal was examined 15 days later and is said to have seen the occurrence from 15-20 ‘Laghas’, P.W.2 has deposed as part eye witness but mentions only the presence of two persons, namely, Basuki and Bijay Mandal (Appellant) sitting on the boat and complicity of the rest of having heard from Ram Swarup Mandal, the Informant (P.W.8). P.W.7 Kamleshwari Mandal has given the evidence first time and even though he claimed to be an eye witness in examination-in-chief, he stated in cross examination that he was not an eye witness. It thus appears that the case depends upon the sole eye witness account of Ravindra Kumar (P.W.8) which has to be taken with great care and caution. From his evidence, it appears that there was random firings on account of which the deceased died, which completely contradicts the prosecution case given at the earliest/earlier instance. We further find that the doctor found two firearm entry wounds on the person of the deceased Prakash Mandal, which is not the case of the prosecution. The place of occurrence is also disproved by the Investigating Officer inasmuch he stated that both the deceased had been killed in the fields. There is also admission of the witnesses themselves that the two deceased had criminal antecedents. 17. In the facts and circumstances of the case discussed above and reasons having been disclosed, this Appeal is allowed. The Judgment of conviction and Order of sentence passed against the Appellant, above named, is set aside. He is acquitted of the charge. The Appellant is in jail custody, therefore, he is directed to be released forthwith, if not wanted in any other case.